Karnataka High Court
Smt Amadada W/O Gouslazam Fajil vs Shri Sameer S/O Baburao Dudagaonkar on 8 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 100781 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100781 OF 2022 (DEC/POS)
BETWEEN:
GOUSLAZAM S/O FAKRUDDIN FAJIL,
SINCE, DECEASED BY HIS L.RS.
1. SMT. AMADADA W/O. GOUSLAZAM FAJIL,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
2. SHRI. CHANDPASHA
S/O. GOUSLAZAM FAJIL,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE-591311.
3. SHRI. ASSLAM S/O. GOUSLAZAM FAJIL,
AGE: 44 YEARS, OCC: AGRICULTURE,
Digitally signed by R/O: KUDACHI, TAL: RAIBAG,
SUJATA SUBHASH DIST: BELAGAVI, PIN CODE - 591311.
PAMMAR
Location: HIGH 4. SMT. SHAMIM W/O. SAIDAHAMAD PATEL,
COURT OF AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
KARNATAKA
R/O: HOSURE, TAL: GADINGLAJ,
DIST: KOLHAPUR, MAHARASHTRA STATE,
PIN CODE - 416502.
5. SHRI. SHIRAJUDDIN S/O. FAKRUDDI FAJIL,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
6. SHRI. BABALAL S/O. FAKRUDDI FAJIL,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
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RSA No. 100781 of 2022
DIST. BELAGAVI, PIN CODE - 591311.
7. SHRI. SAHEBLAL S/O. FAKRUDDIN FAJIL
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
8. SHRI. MOHAMMADHUSSAIN
S/O. MATTULAL FAJIL,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
9. SHRI. MOSHIN S/O. MATTULAL FAJIL,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
10. SMT. RAFUNA W/O. MATTULAL FAJIL,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
11. SHRI. MUNAF S/O. FAKRUDDIN FAJIL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
12. SHRI. SARDARPASHA
S/O. FAKRUDDIN FAJIL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SHRI. SAMEER S/O. BABURAO DUDAGAONKAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
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RSA No. 100781 of 2022
2. SMT. SHARMILA D/O. BABURAO DUDAGAONKAR,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
3. SHRI. FAIJAHMAD S/O. ABDULAJIJ PATEL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
4. SHRI. MOHDDIN S/O. ABDULAJIJ PATEL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
5. SHRI. JAHURAHAMMAD S/O. ABDULAJIJ PATEL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KUDACHI, TAL: RAIBAG,
DIST: BELAGAVI, PIN CODE - 591311.
...RESPONDENTS
(BY SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE FOR R1 TO R5)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 15.03.2021 PASSED IN
R.A.NO.39/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
01.09.2017, PASSED IN O.S.NO.223/2014 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RAIBAG, DISMISSING THE SUIT FILED FOR DECLARATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100781 of 2022
JUDGMENT
The regular second appeal is filed by the plaintiffs
challenging the judgment and decree dated 15.03.2021 passed
in R.A.No.39/2017 by the Senior Civil Judge and J.M.F.C.,
Raibag and the judgment and decree dated 01.09.2017 passed
in O.S.No.223/2014 by the Principal Civil Judge and J.M.F.C.,
Raibag.
2. For the purpose of convenience, the ranking of the
parties is referred to as per their status before the trial Court.
3. The plaintiffs have filed a suit for declaration
declaring that sale deeds executed on 25.06.1974 and
23.07.1975 are null and void and also sought for declaration
that the mortgage made in respect of the suit properties are
null and void. It is the case of the plaintiffs that, the father of
plaintiffs by name Fakrouddin was the owner of the suit
schedule properties and he has mortgaged the suit properties
on 04.09.1969 in favour of Smt.Sumati Dudagaonkar for his
family necessity by receiving an amount of Rs.10,000/- from
her. It is alleged that the said Smt.Sumati Dudagaonkar is the
mother of defendant Nos.1 and 2 by manipulating the said
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mortgage deeds into sale deeds have got registered the sale
deeds. But the mother of defendant Nos.1 and 2 has not
executed redemption of mortgage, but sold the said properties
to defendant Nos.3 to 5 to the extent of 4 acres 2 guntas.
Therefore, the father of the plaintiffs namely Fakrouddin has
filed two suits in O.S.No.123/1988 andO.S.No.124/1988, but
the said suits were dismissed for non-prosecution. Fakrouddin
died on 11.08.1999. The plaintiffs being children of Fakrouddin
have filed the present suit for declaration to declare that the
sale deeds are null and void, redemption of mortgage and
possession of the suit properties.
4. The suit is contested by the defendants. It is the
case of the defendants that the mother of defendant Nos.1 and
2 has sold the suit properties in favour of defendant Nos.3 to 5
through registered sale deeds dated 25.06.1974 and
23.07.1975, thus have become absolute owners. The Trial
Court has negated the contention that the contention taken by
the plaintiffs that the said sale deeds are only nominal sale
deeds and held that the sale deeds are absolute sale deeds.
Thus, dismissed the suit. Also it is observed by the Trial Court
that the plaintiffs have not produced deed of mortgage alleged
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to have been executed as contended in the plaint. Therefore,
dismissed the suit. Upon appeal by the plaintiffs, the First
Appellate Court has dismissed the appeal. Therefore, against
the concurrent findings of the fact in this regard, the plaintiffs
have preferred the regular second appeal.
5. When the plaintiffs have taken contention that
Fakrouddin had mortgaged properties by receiving amount of
Rs.10,000/- from the mother of respondent/defendant Nos.1
and 2, but the plaintiffs have not produced any documentary
evidence to prove that there was mortgage of the properties.
The mother of defendant Nos.1 and 2 by name Smt.Sumati
Dudagaonkar has sold the properties through registered sale
deeds dated 25.06.1974 and 23.07.1975. It is the case of the
plaintiffs that they are the only nominal sale deeds and not
acted upon and it was concocted sale deeds by concoction.
When this being the fact, it is burdened on the plaintiffs to
prove that sale deeds were nominal sale deeds. But the
plaintiffs have not produced any mortgage deeds. It is
allegation against the mother of defendant Nos.1 and 2 that the
sale deeds were concocted stated to have been executed by
father of the plaintiffs. But for this, there is no evidence
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produced by the plaintiffs. Then, the mother of the defendant
Nos.1 and 2 have sold the suit properties in favour of defendant
Nos.3 to 5. Exs.D.8 and 9 are the registered sale deeds
executed by Fakrouddin in favour of mother of defendant Nos.1
and 2. Thereafter, the mother of defendant Nos.1 and 2 has
sold suit properties in favour of defendant Nos.3 to 5. Under
these circumstances, it is not proved that sale deeds are
nominal sale deeds.
6. When it is the case of plaintiffs that, the mortgage
deeds were illegally converted as sale deeds by the mother of
defendant Nos.1 and 2, but for this, there is no evidence.
Therefore, it is proved that father of plaintiffs have sold out
properties to mother of defendant Nos.1 and 2 and which are
not proved to be a nominal sale deeds. When mother of
defendant Nos.1 and 2 has acquired title and ownership over
the suit properties by registered sale deeds, then subsequently
has sold out the suit properties to defendant Nos.3 to 5.
Therefore, these aspects on evidence are correctly appreciated
by the Trial Court and the First Appellate Court and held that
plaintiffs are not entitled decree as sought for and therefore,
the Trial Court after appreciating the evidence on record in this
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regard, has correctly dismissed the suit which is rightly
affirmed by the First Appellate Court after re-appreciating
evidence on record.
7. Therefore, the appeal lacks merit in the case to
interfere with the judgment and decree passed by the Trial
Court and the First Appellate Court having not involved any
substantial question of law. Therefore, the appeal is liable to be
dismissed. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
SSP
CT:ANB
